Short Take: “Paralysis By Analysis” On Biden’s SCOTUS Commission

The Presidential Commission on SCOTUS issued its “discussion materials,” more than 200 pages of incredibly exciting academically moderated words that largely ended up where pretty much everyone expected, whether because the commission was crafted for the purpose of going nowhere fast or because there was never any other serious option given that the cries for radical change to undo the putative conservative theft of the Court were childish and just as partisan, if not more, than Mitch McConnell’s refusing to give Merrick Garland a hearing.

And the people who expected otherwise are pissed.

“Commissioners are divided on whether court expansion would be wise,” one draft paper said. “The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy.”

The materials are still in draft form, meaning that they do not as yet represent the “report” and recommendations to the president, but the idea that there will be some radical change from here to there is extremely aspirational at best.

“Recent polls suggest that a majority of the public does not support court expansion,” the paper said. “And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform — at least if it were done in the near term and all at once — would be perceived by many as a partisan maneuver.”

The argument presented covers both the theoretical concerns as well as the practical, that expanding the Court to put enough reliably progressive votes on it to create a majority while calling it “balanced” is neither the way to preserve the legitimacy of the institution or appease the public. Despite the absolute belief of progressives that they are the voice of the majority of Americans because Biden beat Trump, the majority of Americans don’t necessarily agree. And they are pissed.

“This was not even close to being worth the wait,” said Brian Fallon, the executive director of Demand Justice. “The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several die-hard conservatives who are fully content with the status quo.”

To be fair, the creation of a commission is often a mechanism to make ideas die a painful death. Ironically, Fallon’s attack on a commission “made up mostly of academics,” the group of folks most inclined to accept his flagrantly partisan fringe positions, seems a bit disingenuous. Even more ironic is his grievance that the commission had “several die-hard conservatives,” as in his twisted vision, it should only have had “die-hard progressives”? Even so, how did those conservatives so overwhelm the commission that even the progressives recognized that packing the court was counterproductive?

Then again, it’s not as if his counterparts on the right are any less whiny.

“Far-left progressives are clearly trying to expand their political power under the guise of ‘court reform,’ destroying the independence of our judiciary and threatening the civil liberties of all Americans,” said Kelly Shackelford, the president of First Liberty Institute.

By not packing the Court, Kelly? Strong argument.

It’s not as if Biden’s forming a commission to study the problem reflected anything other than a means to soothe the fevered brow of those who assiduously argue that the Supreme Court is determined to wreak havoc on their favorite constitutional rights. Biden never supported court packing, and while the cries of illegitimacy are primarily intended to neuter public acceptance of the Least Dangerous Branch, it can’t be cured by making it even more flagrantly partisan and illegitimate.

The commission might never have been taken very seriously by anyone as a source of potential change. Then again, the radical changes demanded were never taken very seriously by anyone who understood that a less than desirable Supreme Court was better than nothing.

5 thoughts on “Short Take: “Paralysis By Analysis” On Biden’s SCOTUS Commission

  1. Dilan Esper

    The fact that Biden never supported court packing is, I think, the key point here. He was Chair of Senate Judiciary for a number of years. He almost certainly has institutionalist views about SCOTUS and probably doesn’t want to start a progression of tit-for-tat court packing measures. The Commission was his way of defusing an issue that a lot of people within his party were hot and bothered about. This was always what it was going to do, and it sounds like the Commission understands its mandate.

  2. ahaz01

    I would be interested in seeing the report. While the current make up of the court has served the country relatively well, hiccups notwithstanding, the SCOTUS does need a hard look given today’s hyper-partisan environment. Lifetime appointments of SCOTUS and federal judges should be eliminated. Terms could be limited to a reasonable(?) length to hopefully reduce the tenor the tribal war associated with appointments and give Presidents opportunity to make appointments. The other change would be made to Senate rules to prevent the poisonous behavior that happened under the McConnell Senate. The Senate should be required to perform their advise and consent duties within a reasonable timeframe. Finally, the behavior of the SCOTUS must be examined and influenced. I find that the biggest problem with the SCOTUS is the number of 5-4 decisions that fall along ideological lines and increased use of the shadow docket. This gives the SCOTUS the aura of political partisanship, something I hope all Americans would want the court to avoid. Justice Roberts is cognizant of the need for the court to remain a trusted institution. Hopefully he can get his brethren to listen.

    1. SHG Post author

      The discussion papers are linked in the post and you can read them to your heart’s content. As to changes that you would like to see, that’s not what the post is about and, well, who gives a shit?

      And lest anybody feel that this would make a good launching point to take a swan dive down this rabbit hole, don’t do it or your comment will be brutally trashed.

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